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Where’s the disabled toilet?

Impact of the Equality Act 2010 on property development:

Earlier this month, we were asked by a client – do we need to have a disabled toilet in our building? The answer is complex. Strictly, in most cases, the answer is going to be yes. However, many businesses choose to ‘risk it’ and hope that they are not challenged.

The Equality Act 2010 states that a ‘service provider’, which essentially covers all businesses providing something that the public might have access to, has a duty to make ‘reasonable adjustments’ to ensure disabled people are not put at a ‘substantial disadvantage’. The duty is pre-emptive – meaning that you have a duty to think about (and prevent) the disadvantage occurring before it occurs.

The provision of access and facilities for disabled people has received a lot of media attention recently, following the shocking story of Paralympian, Anne Wafula-Strike, forced to wet herself during a 3 hour train journey because the only disabled toilet on the train was out of order – BBC News - Paralympian tells of train toilet 'humiliation' (3 January 2017).

Fellow Paralympian, Baroness Tani Grey Thompson, said recently in response to claims that Welsh high streets are not doing enough to ensure access for disabled people: "Probably the biggest challenge is the smaller shops who might think it's not reasonable to make adjustments, who might say they don't have enough money to put a ramp in or put a lift in…”- BBC News (Wales) - High street disability access 'needs more progress' (9 December 2016).

Most recently, Doug Paulley won his Supreme Court case that a bus driver should have forced a woman with the pushchair to move in order that he, a disabled person, could use the space provided for wheelchairs/pushchairs on the bus. The argument was that it was unreasonable for the service provider not to adjust the policy of ‘first come first serve’ when it came to disabled passengers. Of course, this begs the question – what if there had been another wheelchair user in the space when Doug Paulley tried to get on the bus… BBC News - Man wins 'wheelchair v buggy' bus case (18 January 2017).

In advising clients, there are two key things to keep in mind – 1) what do ‘reasonable’ and ‘substantial’ mean; and 2) what are the potential consequences of taking a risk.

Unhelpfully, there is no statutory definition of what constitutes a ‘reasonable adjustment’ – however case law has demonstrated that cost alone will not generally be enough to say that something is unreasonable. Likewise, ‘substantial disadvantage’ is open to interpretation. One might argue that there is quite a difference between a corner shop not having an access ramp and not having a disabled toilet.

There are commercial and reputational risks associated with not pre-emptively making reasonable adjustments. There is always going to be a chance that, if the public has access to your business premises, someone might challenge your lack of e.g. a disabled toilet. In which case, not only will you have to manage the fall-out as far as your public image is concerned, but also risk the cost and inconvenience of then having to make that reasonable adjustment, or else potentially be challenged in court. Failure to make a reasonable adjustment is discrimination, and the courts have discretion to award damages accordingly – which could include damages for things such as injury to feelings, and exemplary damages.

Perhaps most importantly, regardless of whether you consider an adjustment to be reasonable in the context of public access, clients need to consider whether their business premises is appropriate for their workforce. If you decided not to have a disabled toilet on your business premises, you run the risk of having to make adjustments if an employee needs one in the future. Of course, this includes the needs of your current workforce as well as future job applicants. Historically, the courts are far less tolerant of failing to make reasonable adjustments in an employment context, and given recent media interest in the issue, the advice would always be to err on the side of caution.

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